I-T- Considering financial hardships of assessee, at least 10% of disputed amount must be deposited by it to balance it with public interests of revenue : HC

I-T- Assessee cannot take advantage of its own wrong and claim that interest should not be reduced while computing disputed tax : HC

I-T- Amalgamating entity ceases to exist upon approval of scheme of amalgamation and notice u/s 148 issued on non existing company in not legal : HC

I-T - If Official Liquidator is custodian of company, there will be no question of willful default on part of earstwhile directors in evasion of tax and no criminal proceedings can be continued against them: HC

I-T - It is not open to AO to reject accounts of assessee company u/s 145, unless he comes to conclusion that notified accounting standards had not been regularly followed by such assessee: HC

I-T - Reopening cannot be sustained, if income chargeable to tax has not escaped assessment in hands of assessee : HC

I-T- While there are no expenses incurred against the rent except for general building maintenance and municipal charges, the CAM involves employment of separate staff and separate operations involved on day to day basis: ITAT

I-T- Rejection of the claim for exemption u/s 54F would arise if only the property stands in the name of the assessee, namely, individual or HUF: ITAT

ST - When Indian company procure orders for foreign company purely on sales commission basis and received the same in convertible foreign exchange then for period after 26.02.2010, said activity should be treated as export of service: CESTAT

Cus - Redemption fine and penalty imposed on assessee at the rate of 19.5% & 7.8% of assessed value by Adjudicating authority is sufficient to meet the end of justice: CESTAT

CX - The LOI and PO for supply were addressed to IGP's HO, duty exemption benefit cannot be denied merely because initial PAC was in name of Kottivakkam unit and not in name of Sembakkam unit on date of clearance when PAC was also rectified later: CESTAT

CX - Nowhere the revenue has come forward with an evidence that how the alleged excess production took place and SCN has been issued without cogent evidence to bring on record the annual capacity of production was not fixed properly: CESTAT

Cus - As is trite law, Abetment is constituted if abettor intentionally aids commission of crime - Proof that alleged crime could not have been committed without interposition of alleged abettor, is per se insufficient to prove abetment - Penalty imposed u/s 112(a) & 112(b) of Customs Act stands quashed where such role of alleged abettor is not established: CESTAT

2023-TIOL-635-CESTAT-MUM

CCE & ST Vs Putzmester Concrete Machines Pvt Ltd

ST - Assessee is a subsidiary of M/s Putzmester GMBH, Germany (parent company) - The assessee used to find customers for their parent company and also purchased goods from parent company and sold the same in India as a trading activity - At times such trading activity also involved high sea sales - Assessee also received consulting engineer service from parent company during the period from April 2008 to March 2009 but did not pay service tax on such services under reverse charge mechanism - Assessee was issued with SCN - In similar circumstances, when Indian company procure orders for foreign company, purely on sales commission basis and received sales commission in convertible foreign exchange then for the period after 26.02.2010, Tribunal has held that said activity should be treated as export of service - In SCN, it is stated that assessee has suppressed the information - Said SCN did not elaborate as to which information was required, in which provision of law and how it was suppressed - Therefore, allegation of suppression is totally presumptive - Extended period can be invoked if there is suppression with an intention to evade duty - Revenue has not established as to how there was intention to evade duty - Till the pronouncement of Final Order, it was debatable as to whether prior to 26.02.2010 under similar circumstances service tax was payable - Therefore, before 17.05.2019 if assessee did not pay service tax till 26.02.2010, it cannot be established that there was intention to evade duty - Therefore, this was not a case for invocation of provisions for extension of limitation period - SCN was issued on 22.10.2012 and during relevant period, normal period for raising demand was 18 months - Therefore, demand for the period after 22.04.2012 would have been for normal period - Tribunal has held that for the period after 26.02.2010 if the Indian company is booking orders for purchase by Indian customers, goods manufactured by foreign company and Indian company booking such purchase order for receiving sales commission in foreign exchange, then said activity is to be treated as export of service - The period before 26.06.2010 is barred by limitation, therefore, Revenue has no case to demand duty under the Business Auxiliary Service - Impugned order is upheld: CESTAT

- Appeal dismissed: MUMBAI CESTAT

2023-TIOL-634-CESTAT-HYD

Sri Venkateshwara Bhakti Channel Vs CCE, C & ST

ST - Appeals filed by appellant against impugned order whereby, Commissioner upheld the action taken by department for recovery of irregular availment of CENVAT credit and recovery of interest liability of said credit - If there is no specific provision under which a SCN can be issued, any notice issued without authority of law cannot be sustained - Scheme Finance Act, 1994, Section 75 provides for payment of interest automatically based on amount of service tax due - Therefore, there is no mechanism for separately deciding how much interest is due and adjudicating upon it - The only question is if interest is not paid and notice must be issued to appellant, in some form asking it to pay interest so that it can defend itself - Appellant has fully availed the opportunity and put forth its defence as to why interest should not be paid through its letters - In defence, appellant has stated that since it had not utilized CENVAT credit and only availed it, a demand of interest is not fair - This issue has already been decided by Supreme Court in case of IndSwift Laboratories with respect to Rule 14 of CCR as it existed during the relevant period - Therefore, officers proceeded to recover interest due in terms of Section 87 - Notice for demand of interest alone can be issued only after quantifying it - It is a different matter if SCN is issued for payment of service tax along with applicable interest - If a demand has to be issued only for amount of interest, it has to be quantified - And such quantification is possible only after date of availment of CENVAT credit and date of reversal are known - Therefore until 6.12.2011, when appellant has reversed CENVAT credit, no notice could have been issued demanding any amount as interest - Because it has to be counted from this date - A letter seeking payment of interest was issued within four months - Before it cannot be said to be time barred - Recovery of interest by Revenue from appellant is sustainable both on merits and on limitation and impugned order upholding such proceedings are correct and proper and call for no interference: CESTAT

- Appeals rejected: HYDERABAD CESTAT

2023-TIOL-633-CESTAT-MAD

IGP Engineers Pvt Ltd Vs CGST & CE

CX - Appellant is manufacturer of rings and ring joint gaskets - They are a sub-contractor of main contractor i.e M/s. Larsen & Toubro Ltd (L&T) for a power project awarded by M/s. Cairn Energy India Pty. Ltd. under International Competitive Bidding - Only dispute is that the Project Authority Certificate (PAC) was issued by M/s. Cairn Energy India Pvt. Ltd. to the unit situated at Kottivakkam, while a part of supply was made by appellant's unit, which is situated at Kizhur, Sembakkam - L&T had placed a letter of intent which was followed by a purchase order for the same goods addressed to IGP's head office (HO)/ registered office - Although the LOI and PO were addressed to IGP's HO the PAC issued by M/s. Cairn Energy India Pvt. Ltd. was to the unit situated at Kottivakkam - Appellant admits that for operational conveniences Sembakkam unit processed and cleared 8525 gaskets to M/s. L&T by availing benefit of exemption under Notfn 6/2006-CE against said PAC - The appellant then got the PAC amended on 25/06/2009 by splitting supplies between Sembakkam and Kottivakam units as per the supplies made - Invoice issued by appellant's Sembakkam unit for 8525 gaskets, carries LOI reference number and date - LOI and PO were addressed to IGP's HO, it was only the PAC which mentioned the unit situated at Kottivakkam - The said PAC has subsequently been amended to rectify and they reflect the actual clearances made to same project - Revenue was of the view that system of allowing exemption based on PAC issued by project authority is to ensure that exemption has not been mis-used by unscrupulous elements and as the payment of duty has to be as on date of clearance of goods, the PAC issued should predate the clearance - While this is correct, appellant has mentioned the split in supply of gaskets to be caused by operational conveniences, which is not unusual in business dealings - They have further got a split PAC issued which is for the quantities cleared by both the units towards same LOI/PO for power project Onshore Block at Rajasthan - When goods have been found to have been cleared towards the power project under 'International Competitive Bidding' which was eligible for duty exemption, the LOI and PO for supply were addressed to IGP's HO and there is no allegation of clandestine clearance, duty exemption benefit cannot be denied merely because the initial PAC was in name of Kottivakkam unit and not in the name of Sembakkam unit on the date of clearance when PAC was also rectified later - Appellant is eligible for availing exemption from duty under Notfn 6/2006 CE for impugned goods - This being so demand for interest and penalty do not survive: CESTAT

- Appeal allowed: CHENNAI CESTAT

2023-TIOL-632-CESTAT-KOL

CCE Vs Orient Steel And Industries Ltd

CX - Assessee was alleged to have suppressed the actual annual production for period 1997-98 to 1999-2000 against annual capacity of production fixed by adjudicating authority - Case of Revenue is that the assessee made excess production against annual capacity of production fixed by Revenue and took place the excess quantity without payment of duty - It is alleged that assessee did not declare the actual production - SCN was issued to demand Central Excise duty along with interest and to impose penalty on assessee - Adjudicating authority found that assessee was operating compound levy scheme during impugned period and annual capacity of production on provisional basis was fixed and thereafter, finally determined the annual capacity of production and assessee was discharging duty liability on such quantum - The jurisdictional Commissioner on the basis of declaration filed by assessee after due verification observed that it cannot be held that assessee has cleared goods without payment of duty - Accordingly, proceedings were dropped - Nowhere the revenue has come forward with an evidence that how the alleged excess production took place and SCN has been issued without cogent evidence to bring on record the annual capacity of production was not fixed properly - Allegations in SCN are not sustainable: CESTAT

- Appeal dismissed: KOLKATA CESTAT

2023-TIOL-631-CESTAT-KOL

CC Vs R K International

Cus - Assessee imported old and used worn clothing, completely fumigated which were assessed after value enhancement, confiscation and imposition of redemption fine and penalty - Adjudicating Authority has imposed redemption fine and penalty at the rate of 19.5% & 7.8% of assessed value respectively - In some of the cases where goods are not available, no redemption fine is imposed - Revenue is before Tribunal for enhancement of redemption fine and penalty - Following the decision of Tribunal in Venus Traders, it is held that redemption fine and penalty imposed on assessee by Adjudicating authority is sufficient to meet the end of justice - Therefore, redemption fine and penalty confirmed by Adjudicating authority is upheld - Consequently, no infirmity found in impugned order and same are upheld: CESTAT

- Appeals dismissed: KOLKATA CESTAT

2023-TIOL-630-CESTAT-KOL

Dhan Kumar Jain Vs CC

Cus - Appellant is a Superintendent of GST and was in service - An intelligence was gathered by the Kolkata Zonal Unit of DRI to the effect that some unscrupulous operators are engaged in importing consignments from Hongkong and China grossly mis-declaring the description and value of the consignments using the IEC registered in the name of other person and shell companies - After preliminary investigation, it was found that one M/s A.S.S.Tradcom imported six consignments at Kolkata Port from Hongkong/China, out of which, two were already cleared, for another three consignments, Bills of Entry were filed and the Bill of Entry was yet to be filed for the six consignments - It was found that IEC holders are not the actual importers of these consignments - The copy of IEC has been obtained from DGFT - It was further found that M/s A.S.S.Tradcom is a partnership Company having partners, Shri Sailendra Singh and Shr Rajesh Roy, residents of Kolkata and Howrah respectively - It was seen that the Customs Broker for the Bills of Entry filed by the above said imports, is one M/s Modern Agency and two consignments were already cleared - Remaining four consignments were examined and found that the goods have been mis-declared and undervalued - It was found that these are branded goods, which amounting the case of suppression and smuggling - All the consignments were seized on the reasonable believe that the said consignments were imported with intention to evade payment of Customs duty misdeclaring those to a different materials of low value - No request for provisional release from the importer was made - It was further revealed that the office premises of the importer was found closed and unoccupied - Shri Sailendra Singh was not found at his residential address, which is occupied by him having 4/5 members - Residence of Shri Rajesh Roy was also searched and no incriminating things could be recovered - He was not present at that time - Statements of the Customs Borker of M/s Modern Agency was also recorded - Statements of Shri Sailendra Singh was also recorded wherein it has been revealed that he was a partner of the importer's firm and further investigation revealed that one Shri Sanjay Agarwal, who was involved in the import of the said consignment, stated that one Shri Monoj Singhal wanted to import the above consignments from Hongkong and it was in search of a person, who could give IEC to him on rent and for that he will pay some money - At this juncture, the Deputy Director advised the appellant not to interfere with the matter - The appellant did not disclose the identity of Shri Sameer Sharma - Later on, the the appellant had given the address of Shri Sameer Sharma and his phone number - The appellant stated that he knew Shri Sameer Sharma when the appellant was posted at ICD, Tuklakabad where, Shri Sameer Sharma used to handle the import consignment of garments in the name of the importers - On the request of Shri Sameer Sharma, the appellant came to the DRI Office to facilitate the clearance of the said goods - The appellant did not know how Shri Sameer Sharma was connected with the said consignments - Another statement of the appellant was recorded and show-cause notice was issued to the appellant to impose penalty under Section 112 (a) & 112 (b) of the Customs Act, 1962 alleging that the appellant has intended to abet the import of mis-declared and under-valued import in the name of M/s A.S.S.Tradcom.

Held - During investigation, it is found that on 25.08.2017, the appellant visited the DRI Office along with one Shri Sameer Sharma, on whose persuasion, the appellant came to the DRI Office to facilitate the clearance of the impugned consignment, but it is very strange, that when Shri Sameer Sharma has also visited DRI Office along with the appellant, why the statement of Shri Sameer Sharma, who is alleged to be tout in the import of the impugned goods, was not recorded - It is found from the record that it has been alleged that the appellant has abeted to mis-declare and under-value the impugned goods, but in fact, the impugned consignment were already intercepted by DRI and found mis-declared and under-valued - In that circumstances, how the appellant was involved in abetment of the impugned consignment, which were already found mis-declared and under-valued - In the case of Shri Ram & Another, the Apex Court has examined that in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime - Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough to comply with the requirements of abetment - The Court cannot heap one assumption to give an another conduct of the appellant meaning which, it does not naturally bear at the best - In that circumstances of the case, the appellant wanted to help the clearance of the consignment, which does not conclude that the appellant has abeted in committing the crime - It is clear that the appellant came to the DRI Office with one Shri Sameer Sharma, whose statement was not recorded at all - The Revenue has failed to prove that the appellant was involved in misdeclaration and under-valuation of the import consignments (which were already seized) without any cogent evidence - Hence penalty on the appellant under Section 112 (a) & 112 (b) is not imposable: CESTAT

- Appeal allowed: KOLKATA CESTAT